Gender Pres-1

Faculty of Law
Public Law Department

NAME : Wayne Makorokoto R165092Z
: Beauty M Mudehwe R166750H
: Wellington Musikadi R16
: Takunda Jacob R16
: Lloyd Toendepi R16
MODULE : Gender and Law LB209
YEAR : 2018
LEVEL : 2.2(LLB)
GROUP 3
Question
Applying the theories of equality and non-discrimination, carry out an analysis of the
following in terms of the 2013 Constitution and international human rights
instruments especially CEDAW and MAPUTO PROTOCOL
. What does the law provide?
.What is the constitution’s position?
.How these issues have been dealt with in the International Instruments
. Are there any gaps?
. What are the interlocking oppressions that affect women and men
differently?
Looking on Matrimonial property making reference to Madzara v Stanbic Bank of

Zimbabwe Ltd v Ors HH 540-15
What does the law provide?
In Zimbabwe, the law that governs property rights in marriage is known as out of
community of property as provided by section 1 of the Married Persons Property
Act.1 This system applies automatically whenever parties contract a valid marriage,
i.e marriage under Marriage Act Chapter 5:11. The only exception is when parties
agree that their marriage will be a marriage in community of property by signing an
ante nuptial contract before the marriage is solemnized. Most married persons are
under the assumption that when they get married what belongs to the other belongs
to them automatically however out of community also means that the property
acquired during the subsistence of the marriage is owned by the person with the title
to the property. In the Madzara case, the wife had no real rights, but had personal
rights to the property despite the fact that she had directly contributed to the payment
of the loan. The husband is the owner of the property and can do whatever he wants
1
Chapter [5:12]
with the property which includes placing a mortgage bond or even selling it. Joint
ownership is the only thing that can provide a solution to the predicament that
spouses face. Therefore, thus showing that, Mr Madzara had the right to place a
mortgage bond on the house, as the title belonged to him meaning he had absolute
rights and could do whatever he wished with the house.
What does the constitution provide?
Section 56(1) of the constitution provides that all persons are equal before the law
and have the right to equal protection and benefit of the law. It goes on to state that
women and men have the right to equal treatment, including the right to opportunities
in political, economic and social spheres. This means that there must be no
discrimination during the marriage and the parties should have the same rights to the
property. To add on Section 26 (c) which advocates for equal rights and obligations
of spouses during marriage is found in the national objectives which means it should
be considered by states when the legislature is enacting the law. However, the
Legislature has done nothing so far to promote the rights of married spouses during
the subsistence of the marriage in relation to matrimonial property.
How these issues have been dealt with in international instruments
Basically Maputo Protocol and CEDAW do not address matrimonial property in

marriages, rather they provides rights to matrimonial property at dissolution of
marriage. Article 2 of the Maputo Protocol underscores African countries’ affirmative
duty to combat all forms of discrimination against women, which includes ensuring
the principle of equality between women and men in its legal framework and
ensuring its effective application. Thus during marriage, women and men should be
equal and there should be equal rights to property. Article 6 j provide the right of a
married woman to acquire and manage her own property freely. The protection of
these rights can only occur when women are given the right to have a say and
bearing on decisions that will affect their lives and families. This is because
customary law reveals that men have a say in the family. Thus, Maputo protocol only
protects the rights to own property and not the right to own matrimonial property
during the subsistence of the marriage.
Article 16 of CEDAW states that State parties shall take appropriate measures to
eliminate discrimination against women in matters relating to marriages and family
relations. The word shall shows that it is peremptory and that women and men shall
have equal rights and thus showing that they have equal rights to matrimonial
property. Article 15 of CEDAW states that women should have the same rights as
men, the right to administer property. This shows that CEDAW tries to eliminate
discrimination against women and the provisions try to modify the social and cultural
conduct of men and women with the view of eliminating prejudices and customary
practices which are based on the idea of inferiority and superiority, thus women and
men have equal rights to matrimonial property. However, CEDAW does not
specifically provide for right to matrimonial property during the subsistence of the
marriage but it advocates for equality of property rights and rights to administer
property.
Article 17 of the Universal Declaration on Human Rights states that, everyone has a
right to own property and that no one shall be arbitrarily deprived of his property.
Thus is the case of Madzara, the wife had the same rights as that of the husband, so
he did not have the right to mortgage the house without the consent of the wife.
Are there any gaps
This unfortunate and unfair position of the law of out of community marriages makes
vulnerable the spouse who, for one reason or another, does not have a real right
over property but has indirectly or directly contributed to the acquisition of this
property. Some men take out loans and place their houses as surety and when they
fail to pay, the house is attached and sold leaving their wife and children homeless.
What the law ignores is that in most instances in a marriage women are never given
the room to make decisions with regards to properties let alone being allowed to own
same or have properties registered in their names by their partners. This provision of
the law fails to also acknowledge that in most marriages, whilst one party is making
contributions towards acquiring a property the other party is either paying other bills
or making indirect contributions such as cooking for builders and managing the
building of the house from beginning until completion. The irony is that upon
dissolution of a marriage and upon the death of a spouse there is better protection
with regards to properties. This is not so during the subsistence of a marriage which
is leaving most women and children destitute when their partners are irresponsible
and dispose of their properties. There is need to focus on law reform and speed up
the realignment process of marriage laws to the new constitution so that parties in a
marriage are duly protected with regards to ownership of property. The international
instruments must also focus on the rights of women to matrimonial property during
the subsistence of the marriage and provide guidelines for property that is owned by
one party.
What are the interlocking oppressions that affect women and men differently?
In most societies, men make policies for everyone and they also control women’s
sexuality. This is mainly because of the patriarchal society which believe that men
are superior to women and women are subordinate to the men. Women are
frequently the victims of traditional cultures which deprive them of their rights. This
cultures under customary law are against gender equality and gender equity in that
men and women are not treated the same when it comes to property rights and there
is no fairness in the implications of those cultures. Some of these discriminations are
protected by legal pluralism which is adopted in Zimbabwe and which recognise
customary law as part of the governing law. Patriarchal society believes women are
perpetual minors and they do not have the right to own property. Property is only
owned by men and they have the right to do whatever they want with it as it is
believed that they are the head of the family.

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Faculty of Law

Public Law Department

: Beauty M Mudehwe R166750H

: Wellington Musikadi R16

: Takunda Jacob R16

: Lloyd Toendepi R16

MODULE : Gender and Law LB209

. What does the law provide?

.What is the constitution’s position?

. Are there any gaps?

Looking on Matrimonial property making reference to Madzara v Stanbic Bank of

What does the law provide?

What does the constitution provide?

How these issues have been dealt with in international instruments

Basically Maputo Protocol and CEDAW do not address matrimonial property in

Are there any gaps

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